Hope v. State

• Citation: 21 Ala.App. 491,109 So. 521
• Decision Date: 31 August 1926
• Docket Number: 7 Div. 173
• Parties: HOPE v. STATE.
• Court: Alabama Court of Appeals

109 So. 521

21 Ala.App. 491

HOPE v. STATE.

7 Div. 173

Court of Appeals of Alabama

August 31, 1926

Appeal from Circuit Court, Shelby County; E.S. Lyman, Judge.

W.H Hope was convicted of possessing a still, and he appeals. Reversed and remanded.

Leeper, Wallace & Saxon, of Columbiana, for appellant.

Harwell G. Davis, Atty. Gen., and Chas. H. Brown, Asst. Atty. Gen for the State.

SAMFORD J.

The indictment was in two counts. The first charged manufacturing whisky and the second unlawful possession. The verdict of the jury convicting the defendant under the second count was equivalent to an acquittal of the charge under the first count of the indictment, so that it will be unnecessary for us to pass upon any question presented by the record and relating solely to the first count. Tuggle v. State, 19 Ala.App. 541, 98 So. 815.

It was proper for the court to allow the solicitor to propound questions to the witness Gillespie qualifying him as to his knowledge of whisky, stills, beer, etc. When so qualified the witness could testify as to what he found at the place where the still here involved was located and as to what it was. Everything there present and relating to the crime charged was a part of the res gestae. Hewitt v. State, 20 Ala.App. 379, 102 So. 489; Cochran v. State, 20 Ala.App. 109, 101 So. 73; Parmer v. State, 20 Ala.App. 233, 101 So. 482; Pate v. State, 20 Ala.App. 358, 102 So. 156.

Counsel in making argument to the jury have a right to state their conception of what the evidence is. This is what the solicitor did, whereas the statement of defendant's counsel ruled out by the court was not based upon any evidence disclosed by this record, and was calculated only to influence the minds of the jury against an officer who was in the discharge of his duty. The rulings of the court as to the argument of the solicitor and in excluding the excerpt from the argument of defendant's counsel were free from error.

The excerpt from the court's oral charge follows:

"You ought to be just as much interested, gentlemen, in the conviction of the defendant, if he is guilty, as you are in his discharge if he is not guilty, and you should be just as much interested in acquitting the defendant, if he is not guilty, as you are in convicting him if he is guilty."

This admonition to the jury is not error, nor is it unfair to defendant. Admonition of the high and sacred duty resting upon juries by nisi prius judges should be encouraged rather than condemned.

The possession necessary to a conviction under the statute condemning the possession of certain stills is defined in Berry v. State, 20 Ala.App. 102, 100 So. 922; Harbin v. State, 19 Ala.App. 623, 99 So. 740; Ex parte ex rel. Atty.Gen., 210 Ala. 55, 97 So. 426. The court in his oral charge said:

"This is a prosecution against this defendant, and you are not here to try any other case. Some testimony has been introduced here about some shooting that was done, and that the defendant was shot by one of the officers, and that one of the things that occurred at the time they said this law was being violated there, but you are not trying that, and the simple and only question for you to determine from all this testimony is whether or not the defendant on the occasion testified about was exercising any acts of ownership or control or dominion over the still down there."

This excerpt taken and considered alone would be error. The crime condemned...